July 17, 2001




v. Index No. 00603429







Although Narco News Bulletin and Al Giordano submitted separate motions to dismiss, supported by separate memoranda of law, Banamex has chosen to respond to both motions in a single memorandum. The reason that Banamex has chosen that strategy is clear: if this court analyzes the issues before the court individually with respect to Narco News Bulletin and Al Giordano (as well as with respect to each allegedly defamatory statement), Banamex's case must be dismissed. However, by rolling conclusory allegation after conclusory allegation into one big bundle, Banamex hopes to survive the defendants' motions to dismiss.

In order to respond in kind to Banamex's opposition, Narco News Bulletin and Al Giordano have submitted a joint reply memorandum. However, each defendant would urge the court to consider their arguments individually, as set forth below.


Banamex begins by arguing that the court has no authority to dismiss allegedly defamatory statements at this stage of the proceedings, even if such statements on their face: (a) are not capable of bearing a defamatory meaning, (b) are protected opinion, or (c) are not of and concerning the plaintiff. In its view, once a plaintiff, like Banamex, has alleged in a complaint that a defendant made defamatory statements, the "issue is one for the jury, not the courts" (Banamex memorandum, p. 2).

Its claim to that effect is a clear misstatement of the law. To the contrary,

Dismissal of defamation suits for failure of the complaint to state a cause of action or to state a claim upon which relief may be granted occurs with relative frequency. One substantial factor is that the communication complained of is usually before the court at the outset; indeed, in many jurisdictions it is required that complaints themselves provide it.

Thus, unlike most litigation, in a libel suit the central event--the communication about which suit has been brought--is literally before the judge at the pleading stage. He or she may assess it upon a motion to dismiss, firsthand and in context. In libel (but not slander) cases, there is usually no factual issue as to who said what, when, where, how, or to whom. 1

The trial court may therefore at the earliest stages make sound determinations as to issues relating to the communication of which complaint is made. Thus courts routinely consider, on motions to dismiss, motion for judgment on the pleadings, or demurrer, issues such as whether the statement at bar is capable of bearing a defamatory meaning, whether it is "of and concerning" the plaintiff, whether it is protected opinion, whether there is jurisdiction over the defendant, and whether the suit is barred by privilege or the statute of limitations, and they frequently grant motions on these grounds and others. (Footnotes omitted.)

Robert D. Sack, Sack on Defamation (3d ed., July 2000), pp. 16-23.

1 The slander allegations here do not suffer from the infirmities present in the usual slander case. Here, as in a libel case, there is no factual dispute as to who said what, when, where, how, or to whom. An audiotape of the WBAI interview and a videotape of the Columbia Law School event, which document the allegedly defamatory statements in question in their full context, were provided to the court with Mr. Giordano's original affidavit, Exhibits A and B. Banamex has not disputed their accuracy.

Indeed, New York law specifically requires that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint" in order that the court can rule on just such issues at the motion to dismiss stage of the proceedings. N.Y.L.P. 3016(a).

Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance . . . The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (Aronson v. Wiersma, 65 N.Y.2d 592, 593-594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138).

Alfajr Printing and Pub. v. Zuckerman, 646 N.Y.S.2d 858 (A.D. 2 Dept. 1996).

See Jimenez v. United Federation of Teachers, 657 N.Y.S.2d 672, 673 (A.D. 1 Dept. 1997) (motion to dismiss granted because the allegations in the complaint: (a) were insufficient to prove "actual malice with sufficient clarity," and (b) the statements in question were either not susceptible of a defamatory meaning or constituted non-actionable opinion).

In addition to having the ability to issue definitive rulings without further discovery because the statements in question are before it, there is a second important reason why courts are encouraged to rule on issues surrounding defamation at the motion to dismiss stage, rather than at trial. That reason is to protect First Amendment rights. The substantial monetary cost, as well as the tremendous inconvenience to a defendant of having to defend a defamation lawsuit, have significant chilling effects on the wide-open debate which is at the core of the First Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). As the United States Supreme Court stated in Time, Inc. v. Hill, 385 U.S. 374, 389 (1967):

Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to "steer . . . wider of the unlawful zone," and thus "create the danger that the legitimate utterance will be penalized."

Accordingly, the earlier such lawsuits, if unjustified, can be dismissed, the less the effect will be on the exercise of First Amendment rights.2

2 A corollary reason is that a judicial finding on defamation issues at a preliminary stage "will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460; New York Times, 376 U.S. at 285, 84 S.Ct. at 728." Rosenblatt v. Baer, 383 U.S. 669 at 677 (1966).

Finally, in this particular case, there is a final reason why this court should rule on whether the statements in question are capable of having a defamatory meaning now, rather than at a later stage of the proceedings. Banamex has alleged that defamatory statements were made in three separate venues: (1) by Mr. Giordano while he was performing his duties as the moderator at a Columbia Law School conference, (2) by Mr. Giordano on a post-midnight radio station interview on WBAI, and (3) by Narco News Bulletin over an Internet website. To the extent that the statements in one or more of these venues are found to be nondefamatory and are dismissed, the facts left for the court to consider in ruling on the issues of forum non conveniens and jurisdiction will be different. Therefore, these issues will not be able to be definitively decided until the court determines what statements remain in issue for a jury.

For all the above reasons, the court should not hesitate to rule on the defamatory nature of each communication in question at this time.

Nicosia v. De Rooy, 72 F.Supp. 1093 (N.D. Cal. 1999) is illustrative. There, the court found that:

[g]enerally, a [United States] district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555, n. 19 (9th Cir. 1989). Material which is properly submitted as part of the complaint may, however, be considered. Id. In addition, documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). 3

3 See also Aligo v. Time-Life Books Inc. (1994 WL 715605), 23 Media L. Rep. (BNA) 1315 (N.D. Cal. 1994), where the court ruled on issues concerning the content of magazine and broadcast materials even though the full documents were not attached to the complaint. "[A] court may consider 'documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading'" (citation omitted).

Id. at 1100.

In Nicosia, the court had before it thirteen allegedly defamatory statements made on an Internet website. On the defendant's motion to dismiss, the court considered the statements one by one, with regard to whether each statement was capable of a defamatory meaning and/or was an assertion of protected opinion. 4 (The court then went on to consider whether the plaintiff had set forth in its complaint, with the requisite sufficient specificity, proof of actual malice.5)

4 The court found that eleven of the statements in question were non-actionable, while two made a threshold showing that they were actionable.

5 The court dismissed the remaining two statements because the plaintiff failed to set forth specific enough allegations in its complaint to meet its burden of showing that the defendant "must have realized the statement was inaccurate at the time he made it." Nicosia at 1109. Examining the statements in their context, the court found that the plaintiff could never meet its burden of proving actual malice.

The method of analysis used by this court should be no different. Banamex made five allegations of slander by Mr. Giordano in its complaint: two during a Columbia Law School forum (Banamex complaint, paragraphs 22 and 24) and three during a radio interview on WBAI (Banamex complaint, paragraph 18). Banamex also made eleven allegations of libel by Narco News Bulletin on "its" website (Banamex complaint, paragraphs 27, 29-38).

All these statements are now before the court in their full context. The content of the statements will never become more clear than they are today. 6 Therefore, where, as here, Mr. Giordano and Narco News Bulletin have filed motions to dismiss on the grounds that the statements: (a) are not capable of being construed as malicious, (b) are protected opinion, (c) are not of and concerning Banamex, and (d) are privileged statements about a legal proceeding, the court should rule on the statements in contention individually at this time.

6 Only portions of the oral statements in question were set forth in Banamex's complaint but, as noted above, the entire statements, in their full context, are now before the court through Mr. Giordano's supplementation in the form of an audiotape and a videotape, both of approximately two hours' duration. Similarly, although certain articles posted on Narco News Bulletin were appended to Banamex's complaint, the complete set of articles posted on Narco News Bulletin from its inception to the date of the filing of this lawsuit have been supplied to the court in order that the statements in question can be read in their full context, which includes the hundreds of Internet links set forth in those documents. These links refer the reader to underlying documents which support the opinions contained in the Narco News Bulletin website papers. Third Affidavit of Al Giordano, Exhibit A.

Once the statements are analyzed, one by one, the court will conclude that none of the statements should survive a motion to dismiss.

The statements in question are analyzed seriatim below.

A. First Allegedly Defamatory Statement Made by Mr. Giordano at Columbia Law School (paragraph 22)

In paragraph 22 of its complaint, Banamex alleges that:

[d]efendant Giordano asserted at the [Columbia Law School] conference that Banamex's Chairman and General Director is "a key drug trafficker" who imports "hundreds of tons of Colombian cocaine by boat onto his properties . . . and then by airplane towards the United States off [his] private airfield." Giordano further asserted that "documentation" exists establishing the truth of these assertions.

Mr. Giordano admits that if those statements about Roberto Hernandez had been asserted by Mr. Giordano in the form that Banamex alleges, there might be an issue for the jury as to whether such statements were made with malice, at least as to Roberto Hernandez (the issue of whether the statements are of and concerning Banamex would still remain to be decided by the court on Mr. Giordano's motion to dismiss). However, what Mr. Giordano actually said at Columbia Law School was distorted by Banamex and is far different from the words attributed to him by Banamex in paragraph 22. In an attempt to be able to allege slander where there is none, Banamex has "cut and pasted" Mr. Giordano's words to take them totally out of context. Mr. Giordano's actual words, which came as he was explaining to the Columbia Law School audience how he came to know Por Esto! and Mario Menendez are not capable of bearing a defamatory meaning:

I had traveled to Merida in the Yucatan peninsula of Mexico to cover the anti-drug summit between President Bill Clinton and President Ernesto Zedillo. This was a completely manufactured event . . .

A newspaper which I had never heard of called Por Esto!, a daily, tabloid-size with color photos, very interesting paper. And Por Esto! had done a three-part series that week on the host of the Clinton-Zedillo anti-drug summit, a banker by the name of Roberto Hernandez. And actually, this was nothing new. Por Esto! had been writing about Hernandez, president of Banamex, the National Bank of Mexico, since December 1996, and his role as a key drug trafficker and importer of hundreds of tons of Colombian cocaine by boat onto his properties. We're going to see the documentation in a few minutes, and then by airplane towards the United States from Mr. Hernandez's private airfield. Mr. Hernandez is one of the most politically powerful people in Mexico.

An accurate factual statement is not actionable. And all Mr. Giordano did in the above statement was accurately describe for the audience at the law school what a daily Mexican newspaper had been reporting about Roberto Hernandez. This was not defamation. 7 Mr. Giordano's statement could only be found capable of bearing a defamatory meaning if Banamex was disputing the accuracy of Mr. Giordano's statement that Por Esto! had written about Roberto Hernandez's "role as a key drug trafficker and importer of hundreds of tons of cocaine." But Banamex is not doing that. Indeed, Banamex has sued Mario Menendez as a co-defendant precisely because Por Esto! printed those exact words.

7 Mr. Giordano's statement is no more susceptible of bearing a defamatory meaning than if a Mexican journalist had introduced Carl Bernstein and Robert Woodward in the 1970s in the following way:

I had traveled to Washington, D.C. to cover a meeting between President Richard Nixon and Mexican economic officials, a completely manufactured event.

Reporters by the name of Carl Bernstein and Bob Woodward from a newspaper which I had never heard of called the Washington Post, a very interesting paper, had done a three-part series on the President. And actually this was nothing new. The newspaper had been writing about Nixon for years and his role in a criminal cover-up. Those reporters are here today and we are going to hear and see their documentation. Richard Nixon is the most politically powerful person in the United States.

At no time in Mr. Giordano's statement concerning how he came to know Mr. Menendez did Mr. Giordano accuse Roberto Hernandez of being a drug trafficker. Indeed, at no point in his statement did Mr. Giordano ever indicate that he personally agreed with Mr. Menendez's claims or documentation. 8

8 Banamex also alleges in paragraph 22 of its complaint that Mr. Giordano's statement to the audience that it would be able to see Mr. Menendez's "documentation in a few minutes" was defamatory. But, as above, accurate statements cannot be slander. It is not in dispute that Mr. Menendez did, in fact, project that documentation, which consisted of photos, maps and documents setting forth the facts upon which his news stories were based, onto a screen for the audience.

Furthermore, even if this court somehow were to find that Mr. Giordano's statement was defamatory, an action for defamation based on the above statement still would not be actionable because disclosure of all the facts underlying an accusation, even if that statement is defamatory in nature on its face, defeats such a claim.

There is no special rule of law making criminal slurs actionable regardless of whether they are asserted as opinion or fact in New York. To the contrary, "accusations of criminality" are "not actionable" if the "facts on which they are based are fully and accurately set forth":

in determining whether a particular communication is actionable, we continue to recognize and utilize the important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener (see Hotchner v. Castillo-Puche, 2d Cir., 551 F.2d 910, 913, cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95; Restatement [Second] of Torts, §566), and a statement of opinion that is accompanied by a recitation of the facts on which it is based.

Gross v. New York Times Co., 603 N.Y.S.2d 813 at 817, 818.

Similarly, "[a]ccusations of criminal activity, like other statements, are not actionable if the underlying facts are disclosed. In re Yagman, 796 F.2d 1165, 1174 (9th Cir. 1986); Dunn v. Gannett New York Newspapers, 833 F.2d 446, 453-54 (3rd Cir. 1987)"; Nicosia v. De Rooy, supra at 1103.

The reason for the rule is simple. Once the underlying facts are disclosed, the audience can judge for itself whether the facts support the allegations.

Moreover, even assuming hypothetically that this court were to find that Mr. Giordano's words would allow a jury to determine if they were actionable as to Roberto Hernandez, Mr. Giordano's words clearly did not defame the plaintiff, which is Banamex. Mr. Giordano's statement concerned Por Esto!'s reporting of Roberto Hernandez's actions, not Banamex's actions. Banamex was mentioned only in the context of identifying Roberto Hernandez. Mr. Giordano's statement did not infer, imply or suggest, in any way, that Banamex, as a business, had participated in any aspect of drug trafficking.

It is black letter law is that a statement about the actions of an officer of a corporation (unrelated to the business of the corporation) is not considered to be of and concerning the corporation itself. For example, the Comments to the Restatement on Torts state that "[a] corporation is not defamed by communications defamatory of its officers, agents or stockholders unless they also reflect discredit upon the method by which the corporation conducts its business." Restatement of the Law, Second, Torts §561.

The Restatement is in accordance with New York law. Afftrex, Ltd. v. General Electric Co., 161 A.D.2d 855, 856, 555 N.Y.S.2d 903, 905 (3d Dep't 1990) (a corporation had no cause of action because of an allegedly defamatory statement made against an individual identified as its owner); Cohn v. National Broadcasting Co., 67 A.D.2d 140, 414 N.Y.S.2d 906, 909 (1st Dep't 1979), aff'd, 50 N.Y.2d 885, 430 N.Y.S.2d 265 (a law firm cannot maintain an action of defamation based on defamation of its principal producer of income--"no such derivative claim for defamation exists"); Warner Instrument Co. v. Ingersoll, 157 F. 311 (C.C.D.N.Y. 1907) ("to merely attack or challenge the rectitude of the officers or members of a corporation, and to hold them or either of them up to scorn, hatred, contempt, or obloquy for acts done in their official capacity, or which would render them liable to criminal prosecution, does not give the corporation a right of action for libel"); The Adirondack Record, Inc. v. Lawrence, 202 A.D. 251 (3d Dep't 1922) ("A corporation cannot maintain an action for slander or libel upon words spoken or published solely of and concerning its officers or members"); Cal-Therm Industries, Inc. v. Dun & Bradstreet, Inc., 75 F.Supp. 541 (S.D.N.Y. 1948) (holding that a corporation cannot maintain an action for defamation based on statements concerning its officers or members).

The law in New York is no different than the law in other jurisdictions. See Church of Scientology v. Flynn, 578 F.Supp. 266, 268 (D. Mass. 1984); Provisional Gov't of New Afrika v. American Broadcasting Cos., 609 F.Supp. 104, 108 (D. D.C. 1985).

Since the law in New York is clear that: (a) a corporation can only recover for defamatory statements concerning its officers or employees if those statements directly concern the business of the corporation and (b) the above statement of Mr. Giordano at Columbia Law School is not of and concerning the business of Banamex, this court should dismiss the statement not only because it was not capable of bearing a defamatory nature, but also because it is not "of and concerning" Banamex. 9

9Although there is no law in New York specifically on this point, arguably, Banamex is required to prove with "convincing clarity" that the statements in question are of and concerning it. In New York Times, the Supreme Court held that the plaintiff has the burden of proving "actual malice" with "convincing clarity." New York Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964). Accord: Jimenez v. United Federation of Teachers, supra, p. 673. That heavy burden of "convincing clarity" has likewise been held to be applicable to the question of whether a statement is "of and concerning" the plaintiff in other jurisdictions. See Anders v. Newsweek, Inc., 727 F.Supp. 1065 (S.D. Miss. 1989), aff'd, 949 F.2d 1159 (5th Cir. 1991) (plaintiff must prove by clear and convincing evidence that language at issue was clearly directed toward plaintiff and was clearly and unmistakably defamatory); Wright v. Dollar General Corp., 602 So. 2d 772 (La. Ct. App. 1992) (plaintiff must prove all elements of claim by clear and convincing proof); Spears v. McCormick & Company, Inc., 520 So. 2d 805 (La. Ct. App. 1987); Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App. 3d 343, 535 N.E.2d 755 (1988) (all critical elements of public-plaintiff case must be proven by clear and convincing evidence).

B. Second Allegedly Defamatory Statement Made by Mr. Giordano at Columbia Law School

The second allegedly defamatory statement of Mr. Giordano is set forth by Banamex in paragraph 24 of Banamex's complaint. It too must be dismissed because: (a) it is no more defamatory in nature than the statement in paragraph 22 discussed above, and (b) it is not "of and concerning" Banamex.

In paragraph 24, Banamex again commits the same error of taking Mr. Giordano's words out of context in order to be able to allege a prima facie case of slander. Paragraph 24 alleges that:

Later in the [Columbia Law School] conference, Giordano represented that he had personally investigated the assertions made in Por Esto! of drug trafficking by the "narco banker" Hernandez, and confirmed that they were "pretty convincing."

However, Mr. Giordano's actual words are quite different from the allegation. Mr. Giordano, in fact, said:

When I began investigating the story of Clinton holding his anti-drug summit on the property of a narco-banker . . . I received a telephone call at my house in Mexico from Sam Dillon, who I had never met. . . . First he picked my brain for information. He wanted to know what I had, what I was going to publish. I said, "Sam I'm still in the middle of my investigation to see whether these allegations on the part of Por Esto! are true. But it seems pretty convincing." Sam Dillon lost his cool and began screaming at me. (Emphasis added.)

This statement was not slander. Mr. Giordano was recounting for the audience a telephone conversation which took place when he "began investigating the [Por Esto!] story of Clinton holding his anti-drug summit on the property of a narco-banker" (emphasis added).

Mr. Giordano did nothing more than say that during the beginning phase in his investigation "to see whether these allegations on the part of Por Esto! are true," he had told another reporter that the allegations seemed "pretty convincing" to him.

This statement was not slander. It was a statement of pure protected opinion. The New York courts have:

[E]ndorsed a methodology derived from Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550, supra that requires that a court look "at the content of the whole communication, its tone and apparent purpose" (Immuno AG v. Moor-Jankowski, supra, 77 N.Y.2d at 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270). Designed to avoid "the fine parsing . . . that might now be required under Federal law" (id., at 255, 566 N.Y.S.3d 906, 567 N.E.2d 1270), the State law approach was viewed as better able to "assure that--with due regard for the protection of individual reputation--the cherished constitutional guarantee of free speech is preserved" (id., at 256, 566 N.Y.S.2d 906, 567 N.E.2d 1270).

As in 600 W. 115th St.:

[W]hen the factors discussed above as part of our Federal analysis are considered under a State contextual analysis, it is clear that, to the extent they make up the "content, tone and purpose" of [Mr. Giordano's] communication, they dictate a finding that [Mr. Giordano's] speech was a statement of opinion and advocacy and not a presentation alleging objective fact. 10

10An inquiry of defamatory content entails an examination of the challenged statements with a view toward (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "'signal. . . readers or listeners that what is being read or heard is likely to be opinion, not fact,'" Gross v. New York Times Co., 603 N.Y.S.2d 813, 817 (Ct. App. 1993).

In this case, any reasonable person in the audience at Columbia Law School that night would have been aware from Mr. Giordano's words--"pretty convinced," "when I began investigating the story"--that the statement in question was his opinion, not a factual allegation of truth.

Furthermore, Mr. Giordano's statement was not of and concerning Banamex. Indeed, Banamex was never mentioned in the statement.

For both these reasons, the second allegedly defamatory statement made by Mr. Giordano at Columbia Law School must be dismissed.

C. First Allegedly Defamatory Statement Made on WBAI (paragraph 18)

Mr. Giordano's first allegedly defamatory statement made on WBAI is set forth in paragraph 18 of the Banamex complaint:

. . . I read in Mr. Menendez's daily newspaper, Por Esto! that the host of the anti-drug summit between the two presidents, Clinton and Zedillo, was the most powerful banker in Mexico, who himself was a money launderer and a drug trafficker. And Por Esto! went further than just saying that he was a money launderer and drug trafficker, they went and took pictures of the cocaine on his property--a very dangerous job his reporters did; they are very valiant journalists. Pictures of the cocaine containers washed up on his beaches, the 43 kilometers of pristine beaches and Mayan ruins that this man has bought up. His name is Roberto Hernandez; he is the president of the National Bank of Mexico, or Banamex.

Again, Banamex is simply wrong in its claim that this is slander. This statement is very similar to the introduction that Mr. Giordano made of Mr. Menendez at Columbia Law School, discussed above. Mr. Giordano is explaining on WBAI radio how he came to know of Por Esto! and what he had read in the newspaper for the audience. Mr. Giordano did not assert in the statement that the allegations made in Mr. Menendez's story were true, nor did he adopt the statements made by Por Esto! as his own. Since there is no suggestion that Mr. Giordano misstated what he had read in Por Esto!, there is no defamation.11

11 The one personal viewpoint expressed by Mr. Giordano in his statement is that the Por Esto! reporters, by trespassing onto private property to take pictures of cocaine containers had acted "valiantly" in undertaking "a dangerous job." This was plainly a statement of opinion.

Equally importantly, Banamex, again, is only mentioned in the context of identifying Roberto Hernandez: "His name is Roberto Hernandez; he is the president of the National Bank of Mexico." As such, the statement was not of and concerning Banamex.

Accordingly, the first allegedly defamatory statement in paragraph 18 should be dismissed.

D. Second Statement Made on WBAI (Paragraph 18)

Mr. Giordano's second allegedly defamatory statement made on WBAI was as follows:

. . . We are here with somebody [Mr. Menendez] who is involved in the front lines of an international battle that has grave consequences, and he needs our support here in New York and here in the United States of America so that the Mexican government and the U.S. government understand that the American people are behind people who tell the truth, like Mario Menendez.

This statement is no more actionable than Mr. Giordano's first statement. The statement is one of "advocacy," in which Mr. Giordano indicates that in his opinion, Mr. Menendez tells the truth and should be supported by the American people. Certainly, the average person hearing Mr. Giordano's statement would not take it to be a factually defamatory statement. Furthermore, it plainly must be dismissed because it is not of and concerning Banamex. The statement does not even mention Roberto Hernandez, let alone Banamex.

E. Third Statement Made on WBAI (Paragraph 18)

Approximately one hour after the second statement, Mr. Giordano made his third allegedly slanderous statement:

. . . And these things that my favorite philosophy graduate is saying here, that Mario Menendez is saying, is that these are not invented. He has published the photos. He has published the eyewitnesses. He has published the testimony. In this three-part series, there were 40 different photos proving this. And the photos don't lie.

Again, a jury would not be justified in finding that Mr. Giordano slandered Banamex in this statement. The statement followed a lengthy discussion between Mr. Menendez and the WBAI host announcer about journalism, as well as the actions and inactions of the United States and Mexican governments with respect to the war on drugs. Their discussion did not mention Roberto Hernandez. Even assuming that it is proper to relate Mr. Giordano's statement back to his first statement about Por Esto! over one hour earlier, nothing he said was untrue. He simply told the audience that his "favorite philosophy student," Mr. Menendez, (a) "is saying" that his allegations in Por Esto! "are not invented," (b) that he has published in Por Esto! (i) forty "photos," (ii) names of "eyewitnesses" and (iii) "testimony," and, furthermore, that (c) "photos do not lie." There is nothing that Mr. Giordano said about Mario Menendez's statements that Banamex disputes. Indeed, these particular statements are exactly why Banamex is suing Mario Menendez.

In addition, the three allegedly defamatory statements made on WBAI should be dismissed because none of them are "of and concerning" Banamex. Only the first statement even mentioned Banamex and that was only in the context of identifying Roberto Hernandez.

Mr. Giordano's three statements on WBAI radio did not in any way refer to the corporate activities of Banamex. There was absolutely no implication in any of the statements that Banamex had or was engaged in or involved with any illegal activity. In short, there was not the requisite "connection" between an officer of a corporation and the corporation sufficient to allow Banamex to bring a libel claim.

Accordingly, each of the three statements made at WBAI set forth in paragraph 18 should be dismissed pursuant to CPLR 3211(a)(7).


It is well established in New York (as well as elsewhere) that a statement concerning a public official or public figure, even if defamatory by nature, is constitutionally privileged unless such statement was made with actual malice.

Because stringent defamation laws--or, more often, the fear of their imposition--can deter and silence people who would otherwise involve themselves in the public debate, the Supreme Court has fashioned broad protection under the Federal Constitution for civic participants, most notably by requiring plaintiffs who are public officials (New York Times Co. v. Sullivan, supra) or public figures (Curtis Publi. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094) to show actual malice on the part of the defendant (see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789). 12

600 West 115th St. Corp. v. Von Gutfield, 589 N.Y.S.2d 825 at 829 (Ct. App. 1992).

12 "Implicit in the Sullivan-Gertz line of cases has been the understanding that, when the rules of defamation are drawn too finely, when any erroneous statement is likely to open the statement maker to liability, First Amendment values suffer because would-be communicators, fearing lawsuits, may be reluctant to risk expressing themselves. To avoid that result, and the resulting impoverishment of the public forum, the Court has been willing to allow in some circumstances otherwise valid claims of reputational harm to go uncompensated in order to encourage citizens and media outlets to express themselves freely when matters of public interest are at issue. In the balance to be struck between the State's interest in protecting its citizens from reputational injury and the Constitution's requirement that the State not unduly burden its citizens seeking to participate in the fundamental processes of governance, the scale is not even." 600 West 115th St., supra at 829.

Therefore, even if Banamex proves the statements in question to be capable of a defamatory meaning and of and concerning Banamex, in order to succeed on its claim, Banamex will have to show that Mr. Giordano's statements were published with actual malice. Banamex is clearly a public figure under existing case law and Mr. Giordano's statements about it were matters of public interest. See Ithaca College v. Yale Daily News Publishing Co., 105 Misc. 2d 793, 433 N.Y.S.2d 530 (Sup. Ct. Tompkins Co. 1980), aff'd 85 A.D.2d 817, 445 N.Y.S.2d 621 (3d Dept. 1981) (corporation may be deemed a public figure generally because of its size and influence, or because of action it has taken that invites public comment); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Reliance Ins. v. Barron's, 442 F.Supp. 1341 (S.D.N.Y. 1977) (defamatory article was of legitimate public concern because it related to a large, publicly held, government-regulated corporation).

The proof of actual malice is extremely difficult. It has been defined by the New York courts as requiring a showing by the plaintiff with "convincing clarity" that the defendant made the statement in question "with knowledge that it was false or with reckless disregard of whether it was false or not." Freeman v. Johnston, 614 N.Y.S.2d 377 at 379 (Ct. App. 1994).

In the case before the court, that proof will be impossible. Mr. Giordano's statements almost universally state that they were founded on the Por Esto! articles (as well as on the Mexican court's dismissals of libel complaints against Mario Menendez). In virtually every statement of Mr. Giordano claimed by Banamex to be defamatory, he refers to the Por Esto! articles and the documentation contained in those articles, e.g., photographs and eyewitness statements. Mr. Giordano's repeated references to those articles and that documentation forecloses any possibility that Banamex will be able to prove that Mr. Giordano acted with reckless disregard as to the truth.

Even at the complaint stage of a defamation action, Banamex is required to make a sufficiently specific allegation in its complaint to support a claim that Mr. Giordano did not have a good faith and reasonable basis to believe that the articles in Por Esto! were true. Having failed to provide any such specificity in its complaint and having such proof specifically belied by Mr. Giordano's reliance on the content of a well-known and well-read Mexican daily newspaper, Por Esto!, dismissal is appropriate. 13

13 Banamex's repeated barren conclusory allegations in its complaint that Mr. Giordano "knew" that Mario Menendez's articles were "untrue" is not enough to allow the case to proceed down the long and expensive road to trial.


A. Introduction

This court should consider the issue of jurisdiction over Narco News Bulletin (as well as the issue of forum non conveniens) separate and apart from the oral statements Mr. Giordano made at Columbia Law School and on WBAI. This is true for several reasons.

First, Banamex named Narco News Bulletin as a separate defendant in the lawsuit. Even now, despite clear proof that Narco News Bulletin is not an entity capable of being sued, Banamex has chosen not to amend its complaint and voluntarily dismiss Narco News Bulletin as a defendant. Therefore, as a matter of law, personal jurisdiction with respect to Narco News Bulletin should be considered separately from personal jurisdiction over Al Giordano.

Second, the general rule is that defamatory statements should be considered separately for jurisdictional purposes. Robert D. Sack, Sack on Defamation, p. 16-3 (3d ed., July 2000). This rule is particularly applicable in this case, where the website known as the Narco News Bulletin was not even in existence at the time of Mr. Giordano's oral statements at the Columbia Law School forum and on radio station WBAI. 14

14 The court will, of course, necessarily consider jurisdiction over the Narco News Bulletin separately from Mr. Giordano's oral statements, should it dismiss the slander count as argued above.

B. Personal Jurisdiction Over Narco News Bulletin in New York Would, in Fact, Have Significant Implications for Websites Around the World

Banamex begins its jurisdictional argument by making an important concession. It concedes that it "does not . . . contend that Giordano's website is subject to personal jurisdiction in New York because it is available 24 hours per day, seven days per week, to any New York citizen who chooses to 'log' onto it." Banamex memorandum at 12. In other words, it agrees with Narco News Bulletin that the mere availability of a website to New York residents cannot be used as a factor in determining whether to confer jurisdiction. 15

15 This concession not only is important but it is totally necessary, since an Internet website cannot limit access to its work to particular states or send differing versions of its communication to different jurisdictions. Therefore, if jurisdiction over a defendant website in a particular state were to rest, in any part, on the mere availability of the website's message in that state, Internet sites would be forced either to comply with the regulations imposed by the state with the most stringent standard, or forego Internet communication of its message altogether.

Banamex then implicitly concedes that the availability of a website to New York residents, plus minor incidental contacts between Narco News Bulletin and New York, will not provide the basis for a finding of personal jurisdiction. Instead, Banamex suggests that "the exercise of personal jurisdiction over Giordano in this case is plainly justified based on his conduct in New York and the publication of defamatory falsehoods on an interactive, New York-based website."

However, neither provides a basis for the personal jurisdiction Banamex seeks. Narco News Bulletin is neither an interactive website nor a New York-based website. (These two issues are explored directly below. 16 )

16 As noted above, Banamex's claims against Mr. Giordano based on slander should be considered separately from Banamex's claims against Narco News Bulletin for libel. Therefore, Mr. Giordano's conduct in New York in March 2000 is not material to the website jurisdictional issue (see argument above).

C. Narco News Bulletin is Not an Interactive Website

Banamex has correctly conceded that the availability of information from a non-interactive website located in another jurisdiction does not confer personal jurisdiction over that website in New York. Therefore, Banamex, in its opposition, attempts to label Narco News Bulletin an interactive website and thereby differentiate Narco News Bulletin from the two leading New York federal cases cited by Narco News Bulletin.

The degree of interactivity is one factor that distinguishes this case from Hearst Corp. v. Goldberger, No. 96 Civ. 3620, 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997) and Bensusan Rest. Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 1996). In Hearst Corp., the magistrate judge found that defendant's web site was "at most, an announcement of the future availability of his services for attorneys," and thus most closely akin to an advertisement in a national magazine. See 1997 WL 97097, at *10. As such, the web site's mere existence could not suffice to confer personal jurisdiction. See id. (citing Davidson Extrusions, Inc. v. Touche Ross & Co., 131 A.D. 2d 421, 424, 516 N.Y.S. 2d 230, 232 (2d Dep't 1987)). In Bensusan, the defendant web site only posted the schedule of shows and provided information about a music club, but provided no means for ordering tickets or otherwise utilize the information provided on that site. See 937 F.Supp. at 299.

Banamex memorandum at p. 11, x 13.

Interestingly enough, Banamex begins its argument on this issue by properly defining an interactive website as one that allows "an exchange of information between the browser's computer and [the] host computer." Blumenthal v. Drudge, 992 F.Supp. 44, 56 (D.D.C. 1998). (Banamex memorandum at 18.) See also Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (E.D. Penn. 1997) (an interactive website is one where users directly exchange information with host computers) (in Zippo, Internet contracts with seven Internet service providers and 3,000 residents of Pennsylvania were found sufficient to confer jurisdiction).

However, Banamex then quickly goes off-course with its bald-faced claim that Narco News Bulletin is an interactive website. This is factually untrue. From the date of Narco News Bulletin's inception until the date of the filing of this lawsuit, it is undisputed that there was no "exchange of information" between any "browser's computer" (in New York or elsewhere) and Mr. Giordano's "host computer" in Maryland (affidavit of Al Giordano with respect to Narco News Bulletin, par. 22).

The Drudge court properly explained the type of activity (none of which is present here) which makes a website interactive. 17

The Drudge Report's web site allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser's computer and Drudge's host computer. Hearing Tr. at 42-42, 61; see Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. at 1124. In addition, browsers who access the website may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer. In turn, as each new edition of the Drudge Report is created, it is then sent by Drudge to every e-mail address on his subscription mailing list, which includes the e-mail addresses of all browsers who have requested subscriptions by directly e-mailing Drudge through his web site. The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his web site is the epitome of web site interactivity. Id. at 56.

17 Banamex admits that it was only after its lawsuit was filed that Narco News Bulletin established a subscription service like the one in Blumenthal. Banamex memorandum at 18. However, events that occur after the filing of a lawsuit cannot be used to establish jurisdiction (see argument below, pp. 22-23).

Implicitly recognizing no such activity occurred on Narco News Bulletin's host computer, Banamex tries to skirt the issue by claiming that Narco News Bulletin's website invitation to its readers to send their "comments, criticisms, news tips and participation (as well as your nominations for Narco-of-the-Month and Hero-of-the-Month") to a different web address 18 renders Narco News Bulletin an interactive website.19

18 In Drudge, e-mail went to the domain name address Drudge@Drudgereport.com--the same computer from which the defendant published his website. Mr. Giordano did not use or promote his e-mail address at Narconews.com prior to the filing of this lawsuit. He used an e-mail address at Hotmail.com, in Redmond, Washington, not the Narco News Bulletin host computer in Maryland (see affidavit of Al Giordano with respect to Narco News Bulletin, paragraph 22).

19 The websites found passive, or noninteractive, for jurisdictional purposes in Bensusan and Hearst invited activity, as did the Narco News Bulletin website. In Hearst, information was provided on the website concerning future services, while in Bensusan the e-mail address of the Blue Club of B.B. King had the very same "click and send an e-mail" feature that was contained on Narco News Bulletin.

But to allow this type of activity to satisfy the definition of an interactive website would be to ignore the definition of an interactive website agreed on by the courts in Drudge, Hearst, Bensusan and Zippo: one in which there is an "exchange of information between the browser's computer and [the] host computer." Banamex is requesting that this court redefine the word "interactive" in the context of Internet law. That invitation should be rejected. Where there is no such exchange with a host computer, as here, a website is noninteractive for jurisdictional purposes.

D. Narco News Bulletin is Not New York Based or Directed

Banamex also asserts a number of "facts" which it claims cumulatively show that Narco News Bulletin was New York-based and/or New York-directed, thus providing personal jurisdiction over Narco News Bulletin. They are examined one by one below.

1. Nexus Between the Subject Matter of the Narco News Bulletin's Articles and New York

Banamex first relies on the proposition in Drudge that a nexus between the website and the state in which the lawsuit is brought is a factor which can be considered in deciding whether to confer jurisdiction. Analytically, Banamex is correct. But, factually, it fails.

In Drudge, there was a clear nexus between both: (a) the subject matter of the particular article alleged to be defamatory and Washington, D.C., the forum in which the plaintiff sued, as well as (b) the general subject matter of the Drudge website and Washington, D.C. First, the subject matter of the article in question there was an allegation of spousal abuse, specifically directed at a White House employee and resident of Washington, D.C., Sidney Blumenthal. Second, the Drudge website itself was directed at Washington, D.C.:

The subject matter of the Drudge [3389] Report primarily concerns political [*57] gossip and rumor in Washington, D.C. Defendant Drudge characterizes himself as the "Thomas Paine of the Internet, . . . who is circulating information for the citizenry reporting on [federal] governmental abuses. . . . and earthquakes . . . at the White House. Hearing Tr. at 37, 41; see Pls.' Opp'n. Ex. 1. Even though Drudge may not advertise in physical locations or in local newspapers in Washington, D.C., the subject matter of the Drudge Report is directly related to the political world of the Nation's capital and is quintessentially "inside the Beltway" gossip and rumor. Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers . . . By targeting the Blumenthals, who work in the White House and live in the District of Columbia, Drudge knew that "the primary and most devastating effects of the [statements he made] would be felt" in the District of Columbia. Telco Communications v. An Apple A Day, 977 F.Supp. at 407.

Id. at 57.

Here, neither factor is present with regard to Narco News Bulletin and New York. The allegedly defamatory sections of the articles on Narco News Bulletin in question are all directed at a resident of Mexico, Roberto Hernandez, who has no claimed connection to New York. Secondly, Narco News Bulletin is not directed in any way, shape, or form toward New York. Each and every one of its eighty-two articles, which have been provided to the court in full, focus on political issues in Mexico, Central America or the Caribbean. None involve New York. 20

20 By making its articles available in English, it is fair to say that Narco News Bulletin has directed its articles toward the English-speaking world. However, its articles are no more directed toward New York than Kansas, Nova Scotia, London, or English speaking populations in foreign countries throughout the world. Narco News Bulletin has no "special connection," as Banamex would have it, to New York.

2. Narco News Bulletin Held a Legal Defense Fundraising Party in New York

Banamex then claims that Narco News Bulletin is New York-based, because it held a party in New York to raise funds for its defense of this lawsuit (Banamex memorandum at 16). However, Banamex should know better than to make a claim of jurisdiction based on post-lawsuit filing activities, especially when those activities were made necessary by the need to defend itself from Banamex's lawsuit. Activities of a defendant in a forum state which occur after the date of the filing of a lawsuit, cannot be used to confer jurisdiction over that defendant. Only pre-litigation contacts are relevant to the jurisdictional question. See, e.g., Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir.), cert. denied, 136 L.Ed.2d 398, 117 S.Ct. 508 (1996); Connecticut Artcraft Corp. v. Smith, 574 F.Supp. 626, 630 (D. Conn. 1983) (same); Lachman v. Bank of Louisiana in New Orleans, 510 F.Supp. 753, 757 (N.D. Ohio 1981) (same); In re Puerto Rico Air Disaster Litig., 340 F.Supp. 492, 298 and n. 19 (D.P.R. 1972).

Indeed, Narco News Bulletin's post-litigation contacts with New York were to raise money for its legal defense and were due to Banamex's choice of the New York forum. See, e.g., Educational Testing Serv. v. Katzman, 631 F.Supp. 550, 556 (D.N.J. 1986) (defendant's contacts with the forum "subsequent to the filing of the complaint, but which are not the result of his defense of this case, are relevant to determining" personal jurisdiction").

Accordingly, the post-filing activities of Al Giordano and/or Narco News Bulletin cannot be used as a factor to be considered in determining jurisdiction.

3. Post Office Box in New York

It is not in dispute that Narco News Bulletin listed a New York post office box as its address. But it is equally not in dispute that the post office box was never used by Narco News Bulletin (affidavit of Al Giordano with respect to Narco News Bulletin, par. 20). A non-used post office box address of a defendant in the forum jurisdiction cannot be used as a factor to support a finding of personal jurisdiction.

4. "Affiliations" with New York Organizations

Banamex's attempts to make much of Narco News Bulletin's "affiliation" with the Media Channel. But that "affiliation" is unrelated to the allegedly defamatory statements and should not be weighed as a factor in deciding whether Narco News Bulletin is subject to personal jurisdiction.

Narco News Bulletin's "affiliation" with the Media Channel means that it, along with over six hundred other Media Channel website "affiliates" worldwide, simply stated its "affiliation," or support of, that site. 21 There is no other relationship, financial or otherwise, between the two.

21 See third affidavit of Al Giordano, para. 13 and 14.

If this "affiliation" was allowed to be a factor in supporting a finding that New York had jurisdiction over Narco News Bulletin, it would significantly decrease linkage between websites worldwide. Websites, knowing that such affiliations could be used to confer jurisdiction in New York, would quickly end such relationships.

The ruling advocated by Banamex would not be in keeping with New York's specific and often repeated intention to open, not close, its doors to the national and international press. The many Internet organizations that have chosen to locate in New York precisely because of its long and proud tradition concerning media freedom would soon find the chilling effect of such a decision drying up and ending their affiliations with websites throughout the world.

5. Location of Narco News Bulletin's Internet Service Provider

Banamex claims that one factor that militates in favor of a finding of jurisdiction is that Narco News Bulletin's internet service provider is located in New York.

However, as explained in Narco News Bulletin's initial memorandum, it is the physical location of the host or server computer (which, in this case, is located in Maryland 22 ) that has been deemed significant in Internet law to date. No decision has found that the incidental location of the billing source for that server is a factor to be considered in the jurisdictional analysis. 23

22 See affidavit of Raj Dutt.

23 In fact, in Jewish Defense Organization v. Ranban, 72 Cal. App. 4th 1045, 85 Cal. Rptr. 2d 611 (1999), the court declined to find jurisdiction in California even where the defendant had contracts with three Internet service providers: "If the [court] found personal jurisdiction, based on the happenstance of the physical location of the Internet server, every complaint arising out of the alleged tort on the Internet would automatically result in personal jurisdiction wherever the Internet server is located. That would not comport with traditional notions of what qualifies as purposeful activity invoking the benefits and protections of the forum state." Id. at 1057, n. 1.

6. Funding from New York for Narco News Bulletin

In Drudge, jurisdiction was based partly on the fact that monies were received from fifteen Washington, D.C. residents in response to the defendant's fundraising efforts on its website. But here, although there was a website-based fundraising appeal, no monies were received from New York as a result (third affidavit of Al Giordano, par. 15).

Since Banamex has conceded that the mere existence of a website that posts information not directed to, but merely available to New York residents, cannot be used as a factor in conferring jurisdiction, the mere posting of an appeal on that website, not directed to, but merely available to New York residents, likewise should not be a factor in the consideration of personal jurisdiction, when that appeal resulted in no funds.

7. Collaboration with the Lindesmith Center

The last remaining factor upon which Banamex urges personal jurisdiction over Narco News Bulletin is Al Giordano's collaboration with the Lindesmith Center, a New York and California based organization. However, as Al Giordano clearly spells out in his third affidavit, his personal collaboration with the Lindesmith Center was unrelated to Narco News Bulletin's activities (par. 12). This is sufficient to be a factor in conferring jurisdiction, since the New York Court of Appeals has construed §302(a)(1) to require that the claim asserted must "bear a substantial relationship to the transaction out of which the instant action arose," and that "[e]ssential to the maintenance of a suit against a nondomiciliary is the existence of some articulable nexus between the business transacted and the cause of action sued upon," McGowan v. Smith, 52 N.Y.2d 268, 272, 419 N.E.2d 321, 323, 437 N.Y.S.2d 643, 645 (1981), a standard the New York Court of Appeals reiterated in Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827, 829, 522 N.E.3d 1027, 1029, 527 N.Y.S.2d 729, 731 (1988).


The issue of whether the action should be dismissed on forum non conveniens grounds, like the issue of jurisdiction, should be considered separately from both Narco News Bulletin and Mr. Giordano. However, dismissal is required for both defendants.

The factors to be considered under New York law are similar, if not identical, to the factors which the United States Supreme Court suggests should be considered in such an analysis: (1) the availability of an alternative forum, (2) "the relative ease of access to sources of proof," (3) "availability of compulsory process for attendance of unwilling" witnesses, (4) "the cost of obtaining [the] attendance of willing" witnesses, (5) the "possibility of [a] view of [the] premises, if [a] view would be appropriate [in] the action," (6) "all other practical problems that make trial of a case easy, expeditious and inexpensive," (7) local interest in the controversy, (8) the administrative difficulties caused by the congestion of local court dockets with foreign lawsuits, (9) the avoidance of unnecessary problems in choice of law and the application of foreign law, and (10) the imposition of jury duty on residents of a jurisdiction having little relationship to the controversy. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

These ten factors militate heavily against allowing the case to proceed in New York. Perhaps the clearest reason why the case should be dismissed in New York and proceed in Mexico, is that if the case proceeds to trial in New York, the major issue to be decided by the jury will be whether Mr. Giordano acted with actual malice. The answer to that will be based on Mr. Giordano's investigation which took place in the Yucatan of Mexico. That investigation included Mr. Giordano's interviews with Por Esto! reporters and interviews with persons acquainted with Mario Menendez (third affidavit of Al Giordano, par. 11). These individuals, all of whom reside in Mexico, will be witnesses at trial. None of them will be subject to compulsory process in New York.

Banamex's assertion that the case will consist primarily of New York witnesses is totally specious. The videotape of a Columbia Law School event and the audiotape of the WBAI interview will serve as the complete record of what Mr. Giordano said in New York. No one from New York will need to be called to testify as to what, when, or where Mr. Giordano made his statements.

Banamex's further claim, that it intends to call New York witnesses to interpret Mr. Giordano's statements, verges on the absurd. As Banamex well knows, the issue of actual malice will be decided by a jury based on an objective standard of what Mr. Giordano knew. There is no precedent allowing witnesses to testify at trial as to the meaning they personally might have given to Mr. Giordano's statements. The jury will be instructed to determine whether Mr. Giordano, in view of the knowledge that he held at the time that he made his statements, made his statements knowing them to be false, as Banamex has alleged. If the statements were not made with knowledge of their falsity, the jury will be instructed to return verdicts for Mr. Giordano and Narco News Bulletin.


Banamex's analysis of the conflict of law issues in its opposition fails because it ignores the clear law holding that each discrete claim of defamation is subject to a separate conflict of law analysis. Wells v. Liddy, 186 F.3d 505, 522-31 (1999). In other words, Banamex's claims of slander based on statements made in New York must be analyzed separately from its claims of libel based on statements on Narco News Bulletin for conflict of law purposes. 24

24 In fact, Mr. Giordano did not raise the issue of conflict of law in his memorandum in support of his motion to dismiss. the issue of conflict of law was raised only in the memorandum of Narco News Bulletin.

In its memorandum, Banamex totally fails to differentiate between the two. When an analysis is conducted with respect to which substantive law applies to the statements made on Narco News Bulletin, it is clear that Mexican law has the most significant interest in that piece of litigation and that its law will apply. This is in accordance with the Restatement (Second) of Conflict of Laws, Sec. 150(1) for multi-state defamation and is also in accordance with New York and federal law.

Accordingly, if Narco News Bulletin is correct in its position that under Mexican law, Banamex's right to proceed with a civil defamation case is predicated on a court finding of criminal liability, the lawsuit against Narco News Bulletin should be dismissed at this time.


Contrary to the assertions of Banamex, each one of the eight allegedly defamatory articles posted on Narco News Bulletin is not actionable, either because: (a) it is not capable of bearing a defamatory meaning, (b) it is protected opinion, or (c) it is not of and concerning Banamex.

Under New York law, each article should be reviewed individually in its full context. Given the length of the articles in question and the scope of the related linked articles on Narco News Bulletin, that analysis has been conducted for each article in the form of an affidavit from Al Giordano entitled "Second Affidavit of Al Giordano," which is incorporated herein.


Banamex has essentially conceded that its claim of interference with prospective business relations against Mr. Giordano and Narco News Bulletin must be dismissed because of its failure to regard the New York cases cited in Narco News Bulletin's brief (Banamex memorandum at 43). Those cases clearly hold that conclusory allegations which merely recite the elements of the tort of interference with contractual relations will not survive a motion to dismiss. See Schuckman Realty, Inc. v. Marine Midland Bank, N.A., 244 A.D.2d 400, 664 N.Y.S.2d 73 (2d Dept. 1997) (dismissing complaint because allegations in support of claim for tortious interference were "devoid of factual basis and vague and conclusory"); Chemical Bank v. Etinger, 196 A.D.2d 711, 602 N.Y.S.2d 332 (1st Dept. 1993) ("conclusory allegations of conspiracy and improper interference were insufficient to meet requirements for establishing liability"); Riddell Sports, Inc. v. Brooks, 872 F.Supp. 73, 78-79 (S.D.N.Y. 1995) (allegations too vague to support essential finding that the plaintiff would have consummated contractual relationships if not for the defendant's conduct); Business Networks of New York v. Complete Network Solutions, Inc., 265 A.D.2d 194, 696 N.Y.S.2d 433 (1st Dept. 1999) (cause of action for tortious interference with prospective business relations dismissed for failure to allege any specific prospective business relations with which the defendant interfered); M.J.&.K Co., Inc. v. Matthew Bender and Company, 220 A.D.2d 388, 631 N.Y.S.2d 938 (2d Dept. 1995) (plaintiffs' mere contention that third parties canceled contracts with them was insufficient because it offered no specific factual basis to support the allegation); Pontos Renovations v. Kitano Arms Corp., 226 A.D.2d 191, 640 N.Y.S.2d 525 (1st Dept. 1996); Porr v. NYNEX, 170 Misc.2d 203, 650 N.Y.S.2d 509 (Sup. 1996); Couri v. Westchester Country Club, Inc., 186 A.D.2d 712, 589 N.Y.S.2d 491 (2d Dept. 1992); Greschler v. Greschler, 71 A.D.2d 322, 422 N.Y.S.2d 718 (1980).


For the above reasons, and the facts contained in Al Giordano's second and third affidavits and Raj Dutt's affidavit, the defendants Narco News Bulletin and Al Giordano respectfully request this court to dismiss the complaint in its entirety.

Respectfully submitted,

Narco News Bulletin
by Its Attorneys



Dated: July 12, 2001 ____________________________________
Thomas Lesser
Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
413 584-7331


Dated: July 12, 2001 _____________________________________
Leonard Weinglass
6 West 20th Street, Suite 10A
New York, NY 10011


Respectfully submitted,

Al Giordano
Pro se


Dated: July 12, 2001 ___________________________________
Al Giordano


Mailing address for purposes
of this case:

c/o Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
e-mail: narconews@hotmail.com

This memorandum is accompanied by three new affidavits of July 2001:

"Second Affidavit by Al Giordano"

"Third Affidavit by Al Giordano"

Affidavit by Raj Dutt of Voxel.net

And a New Exhibit:

"The Mexico Papers," by Al Giordano

This memorandum and accompanying exhibits are offered to the Court in support of:

Motion to Dismiss by The Narco News Bulletin

Motion to Dismiss by Al Giordano

Which were filed together in April 2000 with:

Affidavit by Al Giordano

Affidavit by Al Giordano With Respect to Narco News Bulletin

Affidavit by Karen Thatcher concerning Banamex "Agency" in New York

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